Saturday, 16 August 2008

Why?

I keep on hearing question on why Bar Council 'loves to talk about Islam'..  'Leave Islam alone' ... etc etc, especially since that Forum on Saturday. 

I am in no way trying to defend the Bar Council, but a look at Section 42 of the Legal Profession Act 1976 states the Object and Powers of the Bar. S42 (a) states that the Bar 'shall' have the purposes listed from (a) to (n).  Sometimes one can hear Council members contending that S42 imposes a duty up them to carry out certain things, like S42(1) (a) which requires the Bar to 'uphold the cause of justice without regard to its own interest'. Or S42(a) (g) where the Bar shall 'protect and assist the public in all matters touching ancillary or incidental to the law'.

The Bar is under a duty to uphold justice for the people of Malaysia. That is clear and unambiguous as per S42 LPA. 

Lets look at Islam in Malaysian Legal context. Unlike other religions in Malaysia, Islam has a special place in our legal annals. Islam is specifically recognized in the Federal Constitution. Examples of Islam in our Federal Constitution :-

Article 3 - Islam is the religion of the Federal Constitution though other religion may be practiced in Malaysia.

Article 11 (4) - The propagation of Islam may be controlled by the States. 

Article 121 (1A) - The jurisdiction of Syariah Court and Civil Court is mentioned here.

Then we have many many State Legislation about Islam, which sees the creation  of the many Jabatan Islams all over the country. These Jabatans are then governed by certain State Laws. 

Basically Islam is the only religion in Malaysia which is legislated upon, and therefore the laws related to Islam is subject to usual rules of interpretation, judicial precedents etc. 

Now, the last I remembered, one of the many functions of lawyers and Judges is to interpret the laws. Lawyers will argue out this interpretations and Judges will decide which interpretation is the better/correct interpretation.

After Subashini's case, lawyers have a problem in trying to interpret the effects of that case. At the Forum, both sets of lawyers from the Subashini's case were invited to discuss this. Subashini and her husband have 2 kids, and one of this child was converted to Islam at the request of the Father who also left Hindusm to embrace Islam. The other child remains a Hindu. 

The wife contended that both parents must agree to a child's conversion as per the words in Article 12 (4) of the Federal Constitution, reading together with Section 5 of the Guardianship of Infant Act 1961. But the Federal Court, per the majority Judgment of Nik Hashim FCJ said this :-

"The wife complained that the husband had no right to convert either child of the marriage to Islam without the consent of the wife. She said the choice of religion is a right vested in both parents by virtues of arts 12(4) and 8 of the FC and s 5 of the Guardianship of Infants Act 1961.

After a careful study of the authorities, I am of the opinion that the complaint is misconceived. Either husband or wife has the right to convert a child of the marriage to Islam. The word ‘parent’ in art 12(4) of the FC, which states that the religion of a person under the age of 18 years shall be decided by his parent or guardian, means a single parent. In Teoh Eng Huat v Kadhi, Pasir Mas [1990] 2 MLJ 300, Abdul Hamid Omar LP, delivering the judgment of the Supreme Court, said at p 302:

In all the circumstances, we are of the view that in the wider interests of the nation, no infant shall have the automatic right to receive instructions relating to any other religion than his own without the permission of the parent or guardian.

Further down, His Lordship continued:

We would observe that the appellant (the father) would have been entitled to the declaration he had asked for. However, we decline to make such declaration as the subject is no longer an infant.

[emphasis added]

Therefore, art 12(4) must not be read as entrenching the right to choice of religion in both parents. That being so, art 8 is not violated as the right for the parent to convert the child to Islam applies in a situation where the converting spouse is the wife as in Nedunchelian and as such, the argument that both parents are vested with the equal right to choose is misplaced. Hence the conversion of the elder son to Islam by the husband albeit under the Selangor Enactment did not violate the FC. Also reliance cannot be placed on s 5 of the Guardianship of Infants Act 1961 which provides for equality of parental rights since s 1(3) of the same Act has prohibited the application of the Act to such person like the husband who is now a Muslim (see Shamala Sathiyaseelan v Dr Jeyaganesh Mogarajah [2004] 2 MLJ 241)."



With respect, I would like to quote the Eleventh Schedule Section 2 (95) of the Federal Constitution wherein singular words in the Constitution would include plural meaning too. As such the Federal Court's position that any one of a parent, can convert a child without consent of the other parent is incorrect. 

So, there we stand-lah.  

Who is right? Federal Court? Of course we are now bound by Subashini's Federal Court decision, but being bound by it does not mean lawyers must accept it without trying to jump over its flaws and contradictions. Just like the ongoing discussion on the Boonsoom Boonyanit Fedral Court decision, there is nothing wrong at all to discuss about a decision.

The law as it stand after Subashini with regards to the child's conversion is this:-

1. Any parent can convert a child from one religion to another.

2. The effect of No 1 above is that when the conversion involves Islam, the non-muslim spouse who has no right to attend a hearing in a Syariah Court to ask for the cancellation of such a conversion, may have no remedy. 

3. As Islam in Malaysia is the only religion which is extensively legislated, interpretation of that law becomes crucial. How then, do we interpret syariah laws to include jurisdiction over non - muslims?  

4. Even if the law requires a non-muslim to seek remedy at a Syariah Court, is Malaysia a Country which imposes its subject to accept the order of a Court created by law, based on a religion which that person does not subscribe to?

We have a problem in law, and that law happen to have Islam in it. The lawyers have little choice. Whether the law is about Islam or otherwise, if there is a problem about the law, the lawyer has to try find a way around it. Why? One reason is because we need to advise our client on what to do. That is our job. 

I can visualise a non muslim client walking into my office and informing me that the other spouse has converted their child to Islam and asks me what can the client do? 

My answer? 
If I say 'I dont know'.. dont look good.

If I say 'go to Syariah Court to get remedy'.. I am asking someone who is not a muslim to seek remedy at a muslim court. I wonder if I ask a Muslim client to go to Vatican's Court to seek a remedy, would this Muslim Client do so? Hard to say, hard to gauge.

If I say, fight in Civil Court, I am bound by Subashini's Federal Court's case. Unless this Client is willing to take the case all the way to Federal Court again to revisit Subashini's case, this client would have no choice but to go Syariah. 

But there is a problem - under the State Islamic law, the order of the Syariah Court is meant for muslims. How can a non muslim be receiving an order from a Court which this person has no right to receive the order in the first place??  Wont this order be void? 

When you see a red light, you stop driving. When you step into a shop, you know that the shop must sell the item you want at the price listed or pasted on the item. The law sets that. Our lives are certain and consistent, because the law sets the rules and regulations on what to do and what not. 

In Subashini type of case, we dont really know what we can do if a child is converted with only one spouse's consent.

Hence, the Forum last Saturday was about that - the search for the answer, to explore and discover the solution, to find a resolution.

Why the Bar did it? Well, they either have too much time, or they were just trying to carry out it's duties as per S42 of the LPA. Islam was discussed not because the Bar loves to discuss about the religion, but the there is a situation with the LAW of and for Islam. That was the intended discusssion.

Since our forefathers chose in 1957 to make Islam be regulated by law, then these laws have to be interpreted and argued out. I repeat, the discussion is about the LAW and not Islam. If the lawyers dont do that, then who could, who should and who would?  

3 comments:

Prav said...

well penned article, ric.

I think in general, most people of different faiths have no qualms about mingling and even marrying into different religions.

It's the religious departments, manipulative politicians and religious zealots who go around 'poking fire' at the slightest opportunity.

None more so than certain individuals, who having seen their race card trumped, are now resorting to sow discord between Moslems and non-Moslems.

Richard Wee said...

The fact is, Prav, we have a situation created by muslims in the country (ie UMNO) and rules from Quran has been converted into Law.

When something is Law, that Law is open to interpretation and comments. But UMNO chose to add Islam into the Law, and now the UMNO Ministers (like Albar, who is legally trained by the way) has the audacity to say, that this is Islam, and therefore cannot be discussed openly.

The Forum :-
1. Was NOT discussing about Islam;
2. Was discussing about the Law which has some islamic rules inside
3. Was about Family Law.

This is the problem when one try to add religion into law, and has no proper mechanism to interpret the same.

But if you ask me Prav, this issue of Islam and all, is just a smoke screen. The UMNO people wants us to remain in 'kucar-kacir'. So long as the rakyat is kucar-kacir, they can continue to do the BS that they do.

Prav said...

I agree Ric.
But what's happening now is a noticeable shift in political issues. The gov has obviously over-used its race card, and is now trying religion to split Malaysians. A united Malaysian public would never vote for the gov, hence the March debacle.
That's why the supremacists are so eager to open talks with the fundamentalists. God help Malaysia if those two ever form the gov.